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2013 DIGILAW 1393 (ALL)

MANOHAR LAL GAIRA v. SANTOSH KAPOOR

2013-05-10

B.AMIT STHALEKAR

body2013
JUDGMENT Hon’ble B. Amit Sthalekar, J.—This civil revision arises out of the judgment of the Small Causes Court in proceedings under the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (in short the Act, 1974) in Small Causes Court Suit No. 28 of 2006. 2. Briefly stated the facts are that the plaintiff landlady filed a suit being JSC Suit No. 28 of 2006, Smt Santosh Kappor v. Manohar Lal Gaira, for eviction of the tenant from the shop in question and for giving possession to the plaintiff landlady thereof, together with arrears of rent of Rs. 39,600/-. 3. Briefly stated a suit was filed by the plaintiff landlady (respondent herein) being SCC Suit No. 28 of 2006 in respect of shop No. 19 situated in Gulzari Mal Dharmshala Road Moradabad, which was stated to have been let out to the revisionist-tenant for Rs. 1,100/- per month as rent. The allegation in the plaint was that the revisionist had committed default in payment of rent from June, 2003 till 22.7.2006 amounting to Rs. 41,506/- and also that he had made material alterations in the shop by digging up the flooring in the ground floor and carved out a basement without the consent or written permission of the landlady by digging a 2-3 feet deep basement and by constructing three steps leading to the said basement thereby diminishing the utility and value of the shop as contemplated in Section 20 (2) (c) of the Act 13 of 1972. The case was contested and a written statement was filed by the tenant (revisionist herein) and the allegations in the plaint were denied that any notice was served by the landlady on the tenant prior to filing of the suit as per the provisions of Section 20 (1) of the Act No. 13 of 1972, Act. It has also been denied that any material or structural alterations had been made in the shop causing damage to it thereby diminishing its value or utility. It has also been denied that any material or structural alterations had been made in the shop causing damage to it thereby diminishing its value or utility. The trial Court after hearing the parties and going through the documents on record has by the impugned judgment and decree dated 12.10.2012 held that the tenant-revisionist had committed default in depositing the arrears of rent on the first date of hearing i.e. on 13.2.2007 and secondly that he had also made structural changes in the tenanted shop which had diminished the value of the shop and has therefore decreed the suit of the landlord and directed that the vacant possession of the disputed shop be handed over to the respondent-landlady within one month and also pay the arrears of rent of Rs. 39,600/- plus rent per month at the rate of Rs. 2,500/- w.e.f. 23.7.2006 till the date of handing over the possession of the premises. 4. I have heard Sri Manoj Kumar (Sharma), learned counsel for the petitioner-tenant-revisionist and Sri Kshitij Shailendra, learned counsel for the respondent-landlady and have perused the documents on record. 5. The trial Court framed five issues, namely: 1. Whether by the notice dated 20.6.2006 sent by the landlady to the tenant, the tenancy of the defendant had been terminated and also a demand for arrears of rent had been made. 2. Whether in compliance of the notice, the tenant had deposited the entire arrears of rent within the period of notice. 3. Whether the tenant on the first date of hearing had deposited the entire arrears of rent, the lawyers fee and other expenses as contemplated under Section 20(4) of the Act, 13 of 1972 and therefore entitled to the benefit thereof or not. 4. Whether the tenant had made structural alterations in the tenanted shop without the written permission of the landlady in April, 2004 and that such structural alterations by digging a 2-3 feet deep basement and constructing three steps leading thereto thereby diminishing the value and utility of the tenanted shop in question. 5. Whether the landlady was entitled for restoration of possession and arrears of rent of the tenanted shop in question. 6. The issue Nos. 5. Whether the landlady was entitled for restoration of possession and arrears of rent of the tenanted shop in question. 6. The issue Nos. 1, 2 and 3 were taken up by the Court together and so far as the issue No. 1 is concerned, the Court below has recorded a finding that the landlady had sent a notice dated 20.6.2006 to the tenant marked as paper 6 (Ga) and its original receipt 7 (Ga). A finding has been recorded by the trial Court that the defendant-tenant (revisionist herein) had accepted the receipt of the notice and its original copy has also been filed by him as paper 66 (Ga)/5. The trial Court has recorded a finding that the revisionist-tenant had admitted the receipt of the notice and his reply thereto but he did not pay the arrears of rent within 30 days and in fact deposited a sum of Rs. 65,000/- as arrears of rent, lawyers fee and other expenses on 4.3.2007. Thus the trial Court has recorded a finding that the tenant-revisionist had received a valid notice from the landlady dated 20.6.2006 but he had not deposited the arrears of rent in response thereto within the mandatory 30 days and therefore the suit was maintainable. 7. On the second question as to whether the tenant-revisionist had deposited the entire arrears of rent on the first date of hearing, the trial Court has recorded a finding that the suit was filed on 10.8.2006 and on 6.1.2007 an ex parte decree had been passed against the tenant-revisionist. On 22.1.2007 an application 19 (Ga) was filed by the tenant (revisionist herein) for setting aside the ex parte decree. The plaintiff-landlady filed her objections on 25.1.2007 and the next date fixed for hearing was 1.2.2007 and on that date the tenant’s application 19(GA) was accepted and the ex parte decree was set aside and the case was fixed for filing written statement on 13.2.2007. Thus, the Court below has held the date 13.2.2007 to be the first date of hearing and has recorded a further finding that on 13.2.2007 the tenant submitted an application 25 (Ga) with a tender of Rs. 65,000/- alongwith an application for permission to deposit the arrears of rent. The tenant’s application 25 (Ga) was accepted on 13.2.2007 but the tenant did not deposit the amount of Rs. 65,000/- alongwith an application for permission to deposit the arrears of rent. The tenant’s application 25 (Ga) was accepted on 13.2.2007 but the tenant did not deposit the amount of Rs. 65,000/- either on 13.2.2007 or even on the next date in the Bank but rather the same was deposited on 4.3.2007 vide receipt No. 64 (Ga). 8. Thus, a finding has been recorded by the trial Court that the tenant had failed to deposit the entire arrears of rent on the first date of hearing i.e. 13.2.2007 inspite of submitting his tender and admittedly the same was deposited on 4.3.2007. A finding has also been recorded that the written statement was filed by the tenant -defendant on 19.3.2007 alongwith the voucher for Rs. 65,000/- 9. So far as structural alterations in the tenanted shop are concerned, the trial Court has recorded a finding that the landlady in paras 4 and 5 of her complaint had made a categorical averment that in April, 2004 the tenant-defendant had made structural alterations in the tenanted shop and had also dug a 2-3 feet deep basement by breaking the flooring and had also constructed three steps leading down to the basement in such a manner that the height of the shop was divided into two parts. It was also alleged that the tenant had made structural alterations by fixing iron girders in the wall for purposes of photography development and fixed wooden planks over it to construct a dark room for the purpose thus diminished the utility and value of the tenanted shop in question. The tenant denied the averments in the plaint in para 4 of the written statement as well as para 29 of the written statement. Thereafter an additional written statement was filed. In para 3 of the additional written statement, it has been stated that no partition has been made by fixing iron girders in the walls but whatever alteration has been made is of wood. However, in para 4 of the additional written statement it has been admitted that although the stair case was not made of iron angle but a stair case was made of wood but the said construction does not in any manner alter the construction of the shop and that it is only a temporary construction and not permanent. However, in para 4 of the additional written statement it has been admitted that although the stair case was not made of iron angle but a stair case was made of wood but the said construction does not in any manner alter the construction of the shop and that it is only a temporary construction and not permanent. It has also been stated by the tenant that the landlady never raised any objection and therefore, it will be presumed that she had given her silent consent. The trial Court after examining the records and facts has held that the tenant in his written statement and additional written statement having admitted that he had constructed the stair case itself leads to the tacit admission that he had demolished the original flooring and constructed a basement which was about 2-3 feet deep. The trial Court has held that it is therefore not disputed that the tenant had in fact admitted that he had constructed three steps leading to the basement meaning thereby that the original flooring has been broken up and the basement constructed. 10. In arriving at this conclusion the trial Court has relied upon the evidence of PW.2 Kaushal Kishore, who in his evidence had stated that the tenant had made demolitions in the shop in question. The trial Court has also examined PW-4 an Architect, Junaid-Ul-Haq, whose report was submitted as paper 58 (Ga), wherein, it has been stated that when he inspected the shop in question on 10.1.2008, it was found that there had been demolition in the shop and 2.8 inches depth had been dug and four steps had been constructed leading to the basement. Thus, the trial Court has recorded a clear cut finding based on the statement of witnesses and the documents on record in the nature of Architect Report, and statement of witnesses that it has been established that the tenant had made material and structural alterations in the shop in dispute which had diminished its value and utility and that before making such structural alterations, no sanction of the landlady had been obtained. On these findings the trial Court had decreed the suit and directed the tenant-revisionist to handover the vacant possession of the premises of the disputed shop to the landlady within a period of one month together with arrears of rent of Rs. On these findings the trial Court had decreed the suit and directed the tenant-revisionist to handover the vacant possession of the premises of the disputed shop to the landlady within a period of one month together with arrears of rent of Rs. 39,000/- plus pay rent at the rate of Rs. 2,500/- w.e.f. 23.7.2006. 11. The revisionist has filed on record the typed copy of the order sheet of the trial Court marked as Annexure-19 to the paper book page 207 which begins from the date 13.2.2007. The learned counsel for the respondent, Sri Kshitij Shailendra, however, disputed the order sheet filed by the revisionist and submitted that these orders are not correct and that the revisionist has deliberately concealed certain material facts in the order to mislead the Court. Alongwith the counter affidavit the respondent-landlady has filed the typed copy of the order sheet as Annexure-CA-1 which has not been disputed by the revisionist-tenant to be the correct reproduction of the order sheet. From a perusal of the order dated 13.2.2007, it will be demonstrated that the revisionist has in fact omitted certain relevant portions of the order passed by the trial Court. It is not disputed between the parties that the suit was filed on 10.8.2006 and was decreed ex parte on 6.1.2007. Thereafter the tenant-defendant filed an application 19 (Ga) for recall of the ex parte decree and on 1.2.2007 the ex parte decree was recalled on payment of cost of Rs. 100/- failing which the suit would proceed ex parte. Perusal of the order dated 1.2.2007 shows that 13.2.2007 was fixed for filing of written statement. On 13.2.2007 the tenant submitted an application 25 (Ga) making a tender of Rs. 65,000/- as arrears of rent with permission to deposit the same. The trial Court permitted the petitioner to deposit the said amount on his own risk. The tenant also filed an application 26 (Ga) seeking permission for filing written statement which was granted and the case was fixed for 1.3.2007 for evidence. On 1.3.2007 the case was taken up and on that date application 27 (Ga) was filed on behalf of the tenant-defendant to fix another date and on very strong objection raised on behalf of the plaintiff, the case was fixed for 18.3.2007 on payment of cost of Rs. 100/-. 18.3.2007 was a Sunday and therefore the case was taken up on 19.3.2007. 100/-. 18.3.2007 was a Sunday and therefore the case was taken up on 19.3.2007. On 19.3.2007 the written statement paper 28/Ka was filed alongwith an affidavit 29 (Ka) and the case was fixed for F H (final hearing) for 4.4.2007. The question that arises, therefore, is that in such circumstances what would be the first date of hearing by which the tenant in order to derive the protection of Section 20 (4) of the Act 13 of 1972 would have to deposit the entire arrears of rent. It is not in dispute that the case was fixed for 13.2.2007 for filing written statement. 12. Sri Kshitij Shailendra, learned counsel for the respondent-landlady has raised an objection that the first date of hearing will have to be considered in the light of the provisions of Order XV, Rule 5 of the Civil Procedure Code, where also it is provided that in a suit for eviction of lessee after determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of 9% per annum and shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual failing which his defence may be struck off. However, the submission made by Sri Kshitij Shailendra need not detain this Court as the said controversy is no longer res integra and has already been considered, settled and rejected by the Supreme Court in the case of Ashok Kumar v. Rishi Ram and others, (2002) 5 SCC 641 . The Supreme Court referring to its three Judge Bench judgment in the case of Siraj Ahmad Siddhiqui v. Prem Nath Kapoor, (1993) 4 SCC 406 , held as follows: “8. Rule 1 of Order 5 speaks of issue of summons. When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 1 of Order 5 speaks of issue of summons. When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order 5 says that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws (Amendment) Act, 1972 with effect from 20.9.1972 and Rule 5 was inserted in Order 15 of the Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order 15 defines the expression “first hearing” to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in clause (a) of the Explanation to sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in the Code of Civil Procedure, therefore, the definition contained in clause (a) of the Explanation to sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order 15 of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contra-distinction to the “filing of written statement” mentioned in the definition of the said expression contained in Rule 5 of Order 15, the language employed in clause (a) of the Explanation to Section 20(4) of the U.P. Act, refers to ‘the first date for any step or proceeding mentioned in the summons served on the defendant’. In our view those words mean the first date when the Court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three-Judge Bench of this Court in Siraj Ahmad Siddiqui v. Prem Nath Kapoor. The Bench laid down as follows : (SCC p. 412, para 13) “13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression “first hearing” for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the Court for it is, after all, a “hearing” that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression “first date for any step or proceeding” to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.” 13. Now coming to the provisions of the Act 13 of 1972, Section 20 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 reads as follows: “20. Now coming to the provisions of the Act 13 of 1972, Section 20 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 reads as follows: “20. Bar of Suit for eviction of tenant except on specified grounds.—(1) Save as provided in sub-section (2), 1[* * *] no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub-section shall bar a suit for the eviction of an tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) That the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words “four months” in this clause shall be deemed to have been substituted by the words “one year”. (b) that the tenant has will fully caused or permitted to be cause substantial damage to the building; (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it; (d) that the tenant [has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use], or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; (e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building; (f) that the tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right of re-entry or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord and his employment has ceased. 2[* * *] (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or 3[tenders to the landlord or deposits in Court] the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord’s costs of the suit in respect thereof, after deducting the reform any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground: Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacant after acquisition, any residential building in the same city, municipality, notified area or town area. 1[Explanation.—For the purposes of this sub-section— (a) the expression “first hearing” means he first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression “cost of the suit” includes one-half of the amount of counsel’s fee taxable for a contested suit.] (5) Nothing in this section shall affect the power of the Court to pass decree on the basis of any agreement, compromise or satisfaction recorded under Rule 3 of Order XXIII of the First Schedule to the Code of Civil Procedure, 1908. 2[(6) any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties’ pleadings and subject to the ultimate decision in the suits.]” 14. Sub-Section 4 of Section 20 provides that, if the tenant unconditionally pays or [tenders to the landlord or deposits in Court] at the first hearing of the suit the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9% per annum and the landlord’s costs of the suit in respect thereof, after deducting therefrom any amount already deposited the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. 15. In Ved Prakash Wadhwa v. Vishwa Mohan, (1981) 3 SCC 667 , the Supreme Court interpreted the expression at the first hearing of the suit to mean the date fixed for preliminary examination of the parties (Order 10, Rule 1) and the settlement of issues [Order 14, Rule 1 (5)]. Para 3 of the said judgment reads as follows: “3. We are not disposed to investigate the facts in detail. The question of law raised before us may perhaps be pronounced upon as it is of general importance. Section 20(4) of the Act which we have excepted above fixes the crucial date for deposit of rent as “at the first hearing of the suit”. What is “the first hearing of the suit”? The question of law raised before us may perhaps be pronounced upon as it is of general importance. Section 20(4) of the Act which we have excepted above fixes the crucial date for deposit of rent as “at the first hearing of the suit”. What is “the first hearing of the suit”? Certain decisions have been cited before us of the Allahabad High Court which indicate that “the first hearing of the suit” is when, after the framing of issues, the suit is posted for trial, that is, production of evidence. In the matters of State statutes where procedure has to be pronounced upon, the practice of the Court is the best guide to interpretation and the Allahabad High Court having pronounced upon the question we think we ordinarily accept such interpretation unless there is something revoltingly wrong about the construction. We see none here and, therefore, adopt as correct the decision of the High Court regarding the meaning of the expression “at the first hearing of the suit”. We may however add that the expression “at the first hearing of the suit” is also to be found in Order 10, Rule1, Order 14, Rule 1(5) and Order 15, Rule 1 of the Code of Civil Procedure. These provisions indicate that “the first hearing of the suit” can never be earlier than the date fixed for the preliminary examination of the parties (Order 10, Rule1) and the settlement of issues [Order 14, Rule 1 (5)]” 16. In Sudershan Devi and another v. Sushila Devi and another, (1999) 8 SCC 31 , the expression date of first hearing of the suit was further explained by the Court in paras 30, 31, 32 and 33 which read as under: “30.The question is whether it is the actual date of hearing or framing of issues, that is relevant or the date mentioned in the summons for the aforesaid purpose. 31.The position after Siraj Ahmad Siddiqui and Advaita Nand is as follows. This Court held in those cases that the date fixed for filing the written statement was not the due date and that it was the fresh date proposed for “first hearing” of the suit that would be the due date. 31.The position after Siraj Ahmad Siddiqui and Advaita Nand is as follows. This Court held in those cases that the date fixed for filing the written statement was not the due date and that it was the fresh date proposed for “first hearing” of the suit that would be the due date. It was observed, that the crucial date even after the explanation was the date on which “the Court proposes to apply its mind to determine the points in controversy between the parties to this suit and to frame issue if necessary.” In our view, the use of the word “proposing to apply its mind” and the word “for” final hearing used in Siraj Ahmad Siddiqui’s case and in Advaita Nand’s case are significant. In fact, though Section 20(4) uses the word “at”, the Explanation uses the word “for”. Therefore, we cannot accept the contention of the learned counsel for the appellant tenant that the due date is the actual date when the final hearing takes place. The due date is the date fixed in the summons for final hearing as explained above in Point 1. 32. In the present case before us, the case being one tried by the Small Causes Court, the summons initially stated that the date for first hearing i.e. the date fixed for final hearing would be 22.2.1990. All the three Courts below, therefore, held that the crucial date was 22.2.1990 and there was clear default by 22.2.1990. But, in our opinion, 22.2.1990 would not be the due date. The summons were served in this case by the method of substituted service and it was common ground that the summons were not accompanied by the plaint. The tenant therefore filed an IA seeking a copy of the plaint. That application was allowed and a fresh date for filing written statement and a fresh date for ‘first hearing’ were given. The fresh date for final hearing was 12.4.1990. But the arrears were not deposited even by that date. 33. It is also true that on 12.4.1990, the Presiding Officer was on training but that, in our view, is not relevant inasmuch as there is no difficulty in depositing the rents etc. in the manner prescribed.” 17. The fresh date for final hearing was 12.4.1990. But the arrears were not deposited even by that date. 33. It is also true that on 12.4.1990, the Presiding Officer was on training but that, in our view, is not relevant inasmuch as there is no difficulty in depositing the rents etc. in the manner prescribed.” 17. The Supreme Court referring to its earlier decisions in Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406 and Advaita Nand v. Judge, Small Causes Court, Meerut and others, (1995) 3 SCC 407 , has held that the position after those judgments is that the first date of hearing is the date when the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues if necessary. 18. In Mam Chand Pal v. Shanti Agarwal (Smt.), (2002) 3 SCC 49 , the Supreme Court discussing the facts of the said case and referring to its judgment in Ved Prakash Wadhwa and Sudarshan Devi (supra) in para 7 of the judgment held as follows: “7. In regard to the date of first hearing as indicated earlier, while ordering for publication of the notice, date of hearing was fixed as 3.7.1989. It was wrongly published as 26.4.1989, nothing however would turn upon this, but on 26.4.1989, the Presiding Officer was not available and 11.5.1989 was fixed as the next date. In cases where the Court itself is not available it could not be treated as the date of first hearing. This contention of the appellant-tenant finds support from a Division Bench decision of the Allahabad High Court reported in Jagannath v. Ram Chandra Srivastva. The Court was considering the expression “first hearing” as occurring in Order 15 Rule 5 C.P.C. It was held that the “first hearing” will be the date mentioned in the summons for the purpose except when the Presiding Officer is absent or otherwise is not available to take up the case on that. Two other dates of deposits made by the tenant shall also be important. The amount of lawyer’s fee was deposited on 11.5.1989 and on 1.5.1989 the tenant had deposited the rent for the months of March, April and May, 1989. Copy of the relevant tenders has been filed alongwith Counter Affidavit of the respondent. Two other dates of deposits made by the tenant shall also be important. The amount of lawyer’s fee was deposited on 11.5.1989 and on 1.5.1989 the tenant had deposited the rent for the months of March, April and May, 1989. Copy of the relevant tenders has been filed alongwith Counter Affidavit of the respondent. The Appellate Court also mentioned about the deposit of the rent for the months of March, April and May, 1989 in its judgment while dealing with the matter relating to the point raised about striking off the defence of the defendant-tenant under Order 15, Rule 5 CPC. The High Court however observed that if the next date of hearing is to be taken as 3.7.1989, in that event there would be no deposit of rent for the months of March, April, May and June 1989. It is difficult to sustain the above observations made by the High Court as there is material on the record to indicate that rent for the months of March, April and May 1989 was deposited by the appellant-tenant in the Court on 1.5.1989 and the amount on account of fee of the lawyers was deposited on 11.5.1989 which was the next date fixed after 26.4.1989. That is to say by 11.5.1989 of the amounts of arrears due up to May, 1989 stood deposited. The amount deposited even before the date of first hearing amounts to sufficient compliance with sub-section (4) of Section 20 of the Act. Such observations have also been made in the decisions of this Court as referred to earlier namely; Ved Prakash Wadhwa and Sudarshan Devi. It is thus clear that all the dues of arrears of rent as well as other amounts liable to be deposited under sub-section 4 of Section 20 of the Act had been duly deposited by 11.5.1989. There has been thus sufficient compliance with sub-section (4) of Section 20 of the Act. The High Court and the Courts below erred in treating 26.4.1989 as the date of first hearing.” 19. In the case of Ashok Kumar and others v. Rishi Ram and others (supra) the Supreme Court has referred to its earlier judgment in the case of Siraj Ahmad Siddiqui (supra) and Advaita Nand (supra) and also Sudershan Devi (supra) and thereafter on the facts of the case of Ashok Kumar held as follows: “12. In the case of Ashok Kumar and others v. Rishi Ram and others (supra) the Supreme Court has referred to its earlier judgment in the case of Siraj Ahmad Siddiqui (supra) and Advaita Nand (supra) and also Sudershan Devi (supra) and thereafter on the facts of the case of Ashok Kumar held as follows: “12. Now adverting to the facts of the case on hand, it has been noticed above that the suit was posted on 20.5.1980 for final disposal but that date cannot be treated as the first hearing of the suit as the Court granted time till 25.7.1980 to the tenant for filing written statement. On July 25.7.1980 time was extended for filing written statement and the suit was again adjourned for final disposal to 10.10.1980. Inasmuch as after giving due opportunity to file written statement the suit was posted for final disposal on 10.10.1980 it was that date which ought to be considered as the date fixed by the Court for application of its mind to the facts of this case to identify the controversy between the parties and as such the date of first hearing of the suit. Admittedly, on that date the appellant-tenant deposited all the arrears of rent. Though, the suit was again adjourned to 12.5.1980, it would be irrelevant because the date of first hearing of the suit is the date when the Court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was 10.10.1980, as stated above. The amount of arrears of rent having been paid on that date, there is compliance of sub-section (4) of Section 20 of the U.P. Act so the tenant is entitled to the benefit of the said provision.” 20. Coming to the facts of the present case, it will be seen that originally notice was issued on 20.6.2006 the tenant-revisionist failed to appear on the said date or deposit the entire arrears of rent and the suit was decreed ex parte on 6.1.2007. Coming to the facts of the present case, it will be seen that originally notice was issued on 20.6.2006 the tenant-revisionist failed to appear on the said date or deposit the entire arrears of rent and the suit was decreed ex parte on 6.1.2007. The tenant-revisionist filed an application 19 (Ga) for recalling of the ex parte decree to which objection was also filed by the respondent-landlady on 25.1.2007 and thereafter the ex parte order was set aside and the case was fixed for 13.2.2007 for filing of written statement. On 13.2.2007 the tenant filed an application 25 (Ga) stating that he was submitting his tender for Rs. 65,000/- and permission may be granted to him for the same. The trial Court allowed the application of the tenant and permitted him to make the tender on his own risk. On the same date i.e. 13.2.2007 the tenant-revisionist also filed an application 26 (Ga) praying for more time for filing written statement to which no objection was raised by the landlady and the application 26 (Ga) was accepted and thereafter 1.3.2007 was fixed for evidence. On 1.3.2007 an application 27 (Ga) seeking adjournment was filed which was strongly objected to by the plaintiff-landlady but the said application was accepted by the Court on payment of cost of Rs. 100/-. Thereafter 18.3.2007 was fixed as the next date. !8.3.2007 was a Sunday and the case was taken up on 19.3.2007. The tenant filed his written statement 28/Ka alongwith an affidavit 29 (Ka) and thereafter the case was fixed for final hearing for 4.4.2007. In the meantime the tenant deposited the arrears of rent on 4.3.2007 which is admitted to both the parties to the litigation. 21. The question to be considered is as to whether the arrears of rent were deposited as per the provisions of Section 20(4) of the Act 13 of 1972 or not. Applying the law laid down by the Supreme Court in the case of Ashok Kumar (supra) 13.2.2007 therefore cannot be said to be the first date of hearing nor can it be said to be the date when the Court proposed to apply its mind to the controversy involved. After 13.2.2007, 1.3.2007 was fixed for evidence but on that date the case was adjourned on the request of the tenant for filing written statement which was accepted on payment Rs. After 13.2.2007, 1.3.2007 was fixed for evidence but on that date the case was adjourned on the request of the tenant for filing written statement which was accepted on payment Rs. 100/- as cost and ultimately the tenant filed his written statement on 19.3.2007. In between on 4.3.2007 he deposited the arrears of rent. Therefore, the facts when examined in the context of the law laid down by the Supreme Court in the case of Ashok Kumar (supra) particularly para 12 thereof, neither 13.2.2007 nor 1.3.2007 could be said to be the first date of hearing on which the trial Court proceed to apply its mind and therefore the finding recorded by the trial Court to the contrary that 13.2.2007 was the first date of hearing cannot be accepted being contrary to the judgment of the Supreme Court in the case of Ashok Kumar (supra). 22. The other point which has been argued by Sri Manoj Kumar (Sharma), learned counsel for the revisionist-tenant is that no material alterations had been made by the tenant in the shop in question which may be stated to have diminished the value or utility of the premises in dispute. A perusal of the plaint which has been filed at page 70 of the paper book of the revision will show that the plaintiff has made a categorical averment in para 4 thereof that the tenant had dug up the basement of the shop and had broken the flooring by digging a basement which was 2-3 feet deep and to reach into the basement he had constructed a three steps stair case and had also put up iron girders into the walls of the shop for the construction of a dark room. It was further averred in the plaint that the demolition in the shop was made in such a manner that it was divided into two parts creating a basement and an upper floor and to reach the upper floor a stair case of angle iron was fixed into the walls. 23. It was further averred in the plaint that the demolition in the shop was made in such a manner that it was divided into two parts creating a basement and an upper floor and to reach the upper floor a stair case of angle iron was fixed into the walls. 23. The reply to the plaint is in para 4 of the written statement dated 4.1.2008 filed at page 93 of the paper book, wherein, the tenant has stated that no stair case or angle iron was put up by him but only a wooden stair case was put up by him which can be removed at any time and therefore it does not diminish the value or utility of the shop in dispute. Thus from the averments in the written statement it will be seen that the specific averment in the plaint that has been made in para 4 of the plaint that the floor of the shop in question had been broken down and a 2-3 feet deep basement had been dug after digging up the flooring and three steps stair case had been constructed to enter into the basement has not been denied at all by the tenant. The only denial in the written statement is with regard to the construction of the angle iron stair case leading to the upper floor after digging up the flooring and dividing the shop into the basement and the upper floor. This fact has been noted by the trial Court while deciding the issue No. 4. The trial Court has further recorded a finding that the statement of PW-4 an Architect, Junaid-Ul-Haq Paper No. 58 (Ga) has also confirmed that the flooring of the shop in question was broken up and dug to a depth of 2.8 feet and to reach the basement a four steps stair case had been constructed. This report of the Architect is dated 10.1.2008 and thus the trial Court has noted that on that date a spot inspection of the shop in question was also conducted. 24. Thus, the findings recorded by the trial Court based on the statement of witnesses and the undenied and undisputed pleadings of the parties clearly establishes that material alterations were made by the tenant in the premises in dispute. 24. Thus, the findings recorded by the trial Court based on the statement of witnesses and the undenied and undisputed pleadings of the parties clearly establishes that material alterations were made by the tenant in the premises in dispute. The trial Court has also recorded a finding that the material alterations were made without the written sanction of the plaintiff-landlady. He has also recorded a finding that the tenant has not been able to establish that there was any written permission obtained by him from the plaintiff-landlady for making the material alterations in the shop in question. The trial Court has, therefore, recorded a finding that the material alterations have diminished the value and utility of the property in dispute as conceived by the plaintiff. 25. The learned counsel for the tenant-revisionist on the other hand has tried to show that the material alterations were not such as may have diminished the value or utility of the property in question. Such a contention from the tenant cannot be accepted as the question as to whether the material alterations had diminished the value or utility of the property in dispute is a matter based entirely upon the subjective satisfaction of the landlady, and the tenant cannot be heard to dispute the fact that the material alterations have not diminished the value of the property. 26. In Vipin Kumar v. Roshan Lal and others, (1993) 2 SCC 614 , while interpreting the provisions of Section 13 (2) (iii) of the East Punjab Urban Rent Restriction Act, 1949 the Supreme Court has held as follows: “The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of clause (iii) of sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises.” 27. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises.” 27. In Gurbachan Singh and another v. Shivalak Rubber Industries and others, (1996) 2 SCC 626 , the Supreme Court again while interpreting the provisions of Section 13 (2) (iii) of the East Punjab Rent Restriction Act, 1949 has reiterated its observations in the earlier judgment in the case of Vipin Kumar (supra) and has held as follows: “12. Section 13(2) (iii) of the Act which provides a ground for eviction of tenant reads as under : “13.(2) (iii).- that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land”. A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression “to impair materially” in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word “impair” cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term “impair materially” has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or effected suggesting impairment. Further the use of the word “value” means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else. This Court while dealing with the provisions of Section 13(2) (iii) of the Act in the case of Vipin Kumar v. Roshan Lal Anand, expressed the view as follows: (SCC p.617, para 2) “The impairment of the value of utility of the building is from the point of the landlord and not of the tenant. The first limp of clause III of sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that erecting the wall he had materially impaired the value or utility of the demised premises”. 13. In the instant case before us as discussed in the foregoing paragraphs it is distinctly clear that the tenant-respondents have constructed a lintel roof over all the five shops Nos. 2 to 6 by removing their original roof and they not only removed the intervening or partition walls of the shops but also removed the doors of the five shops and converted them into sheds, store and kothries. They also converted the verandah in front of the shops into sheds by closing it from the front by masonary work. The door of shop No. 2 has been removed altogether and instead a small window with iron grills has been affixed in the front. The full size door of shop No, 3 has also been removed and a door measuring 3' x 7' has been installed in front of the verandah by merging the shop No. 3 into that part of the verandah. Similarly shop No. 4 has also been merged with the verandah by removing the door of the shop and fitting a door in the verandah itself in order to make it a godown. Shops Nos. 5 and 6 have also been merged with the part of the verandah in front of those shops with masonary work. Similarly shop No. 4 has also been merged with the verandah by removing the door of the shop and fitting a door in the verandah itself in order to make it a godown. Shops Nos. 5 and 6 have also been merged with the part of the verandah in front of those shops with masonary work. The 17 ft long and 5 ft 9 inches high boundary wall existing on the western side of the demised land touching the kothi of Chander Muni respondent 1-A has been demolished so as to facilitate a passage from the Kothi of respondent 1-A to the demised premises by fixing one big wooden door and another steel door in place of the demolished boundary wall, A small triangular shaped kothri has also been constructed and a brick stair case has been raised in order to facilitate an access from the Courtyard of the respondent 1-A to the roof of the shed made over the demised land as a direct approach. 14. Thus, from the above mentioned facts it is clear that even if it is assumed that the tenant respondents raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note Ext. A/1, then the rest of the construction, additions and alterations of the five shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is a relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act. The High Court, therefore, fell in patent error in dismissing the revision in limine without going into the correct legal position involved in the case. Having regard to the facts and circumstances discussed above, we are of the firm view that this is a case which squarely falls within the mischief of the provisions contained in Section 13(2) (iii) of the Act which make the tenant-respondents liable for eviction from the demised premises.” 28. As already noted above the finding of fact recorded by the trial Court is that the flooring of the shop in dispute was dug up to a depth of 2.8 inches and to reach that depth four steps had been constructed by the tenant-revisionist. Moreover, by creation of a basement the shop had been divided into two parts creating a basement and an upper flooring and to approach the upper flooring and angle iron stair case was fixed into walls leading to the upper floor and the construction was for purposes of creation of a dark room for purposes of photography business of the tenant. A finding of fact has also been recorded that in order to create the upper floor iron girders were placed which were dug into the side walls. A further finding has been recorded by the trial Court that the entire construction by way of material alterations was made by the tenant without any permission in writing from the landlady. Thus from the entire evidence on record the trial Court has recorded a finding that the material alterations made by the tenant is as such to diminish and impair the value and utility of the shop in question. 29. Thus, from the above factual discussion and the findings of fact recorded by the trial Court, and the law laid down by the Supreme Court, in my opinion, the civil revision has no merit and is accordingly dismissed. 30. However considering that the revisionist-tenant has continued in possession of the disputed premises under the interim order granted by this Court dated 20.12.2012 the tenant is allowed one month’s time from today to vacate the premises in dispute and hand over peaceful possession thereof to the landlady. ——————